Minden v. The King

MOTION under section 1025 of the Criminal Code for leave to appeal to this court from the judgment of the Court of Appeal for Ontario upholding the conviction of the appellants. Leave to appeal was refused by the judgment now reported.

A. N. Lewis K.C. for the motion.

the judgment of the Court of Appeal of Ontario in the present case and the judgment of the Supreme Court of Canada in the Electric Motor case (2).

But when it comes to the next point raised by counsel representing the Attorney-General of Ontario, the appellants do not fare so well. In Electric Motor & Machinery Company Limited v. The Bank of Montreal (2), the subject-matter of the case was not criminal law. As appears by the short statement of the facts made at the beginning of this judgment, the Electric Motor case (1) was about the approval of a proposal for a compromise. It was only indirectly and as an incident to the main question that the court was called upon to construe subsections (q) and (r) of section 191 of the Bankruptcy Act. It was not done for the purpose of deciding whether the debtor had to be convicted of the criminal offence covered by the section, but only with the view of adjudicating upon the application for approval of the compromise.

Obviously this was not a criminal proceeding.

Under these circumstances, I am of opinion that the judgment in the Electric Motor case (1) does not meet the condition required in section 1025 that it should be the judgment of any other court of appeal in a like case." Repeating again that the purpose of the section is to render as uniform as possible the administration of the law in criminal matters, The King v. Janousky (2); Arcadi v. The King (3), my view is that, when Parliament used the expression " any other court of appeal in a like case," it must be taken to have referred to a court of appeal adjudicating in criminal proceedings or upon criminal matters. Section 1025 is in the Criminal Code; and general language of that kind must be presumed to refer to the subjectmatter of the statute where the section is to be found. For those reasons, I hold that the judgment of this court in Electric Motor & Machined Co. v. The Bank of Montreal (1) is not a judgment of another court of appeal in a like case with that of the judgment sought to be appealed from.

I may say further that, even assuming the other points in favour of the appellants, I do not understand the judgment of the Court of Appeal to be in conflict with the judgment of this Court in the Electric Motor case (1).

The latter judgment, as already stated, decided that, in order to be offences under subss. (q) and (r) of s. 191, the acts must have been committed by the debtor after he has been adjudged bankrupt. In the present case, the Court of Appeal also expresses the same view in respect to another subsec-